United States v. Cloutier

2 C.M.A. 244, 2 USCMA 244

• Court: United States Court of Military Appeals
• Decided: February 27, 1953
• Docket: No. 662
• Status: Published

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

On September 4, 1951, appellant Cloutier and another were convicted by general court-martial sitting in Tokyo, Japan, under a specification alleging that they did “by force and violence and putting him in fear, felo-niously steal from the person of Toshi-kazu Naito, against his will, about three thousand six hundred yen (¥3,-600.00), of a value of about ten dollars ($10.00), the property of Toshikazu Naito,” in violation of Article of Wax 93, 10 USC § 1565.¹ The convictions were approved by the convening authority and affirmed by a board of review. Only appellant Cloutier has appealed. This Court granted his petition for review on June 2, 1952, limited to the following issue:

“Whether the record of trial fairly required the law officer to instruct the court on the elements of lesser included offenses.”

We have dealt with the problem of instructions on lesser included offenses in numerous cases, and have announced that the touchstone for determining the necessity for such instructions is to be found in the evidence adduced at the trial — that is, whether “there is a reasonable basis in the evidence from which it can be inferred that the lesser crime was committed.” United States v. Williams (No. 251), 2 CMR 137, decided March 14, 1952; United States v. Roman (No. 191), 2 CMR 150, decided March 19, 1952; United States v. Banks (No. 382), 4 CMR 71, decided July 24, 1952; United States v. Stout (No. 497), 5 CMR 67, decided August 27, 1952. We turn therefore to the evidence reflected in the record of trial in the instant case.

There is no dispute concerning a substantial segment of the operative facts. Appellant, and his co-accused, accompanied by two Japanese prostitutes, were passengers in a taxicab operated by the victim of the alleged robbery, Toshikazu Naito. After the taxi reached its destination an altercation between appellant and the driver-ensued, and appellant struck the latter several times with his fists. During the struggle, the driver’s arms hit the horn and the soldiers jumped from the taxi and ran away. The driver went to the police after receiving emergency treatment for his bruises.

The point- of testimonial difference has to do with the reason for the beating of the taxi' driver. Appellant testified that when the trip ended the driver demanded an exorbitant fare. Unwilling to pay the amount requested, he threw a lesser sum to the operator of the vehicle and proceeded to leave the' cab. At this point — appellant’s testimony continues — the driver forcibly seized his right arm, which had been injured in. Korean combat, and had not yet healed. The driver’s grasp was extremely painful, and appellant by way of uncontrollable reflex, struck him several tibies to break his hold. This testimony was corroborated in substance by that of the co-accused. The driver, on the other hand, related a markedly different version. He testified that when he halted the cab, he was seized from the rear by appellant’s companion and thereafter struck by appellant several times. Both men, he said, demanded that he surrender his money — and, in fear of further beating, he gave them ¥3,600, about $10.00. Almost immediately thereafter he reported the incident to the police. One of the prostitutes, called as a witness, testified that prior to the-affray she had heard one of the accused say “something . . . like hitting or striking, or something like that.” She testified on this subject in English,' although the remainder of her testimony was presented through an interpreter. It was- quite evident from her attempt to testify in English that, at best, she had only a rudimentary knowledge of the language.

The Government argues that there were no reasonable alternatives to the offense charged — that- is, that the accused was either guilty of the offense charged or not. guilty. With this we cannot agree. Prosecution and defense witnesses alike agree that the taxicab driver was beaten up by the accused. The accused admitted striking the taxicab driver — claiming that he did so in order to break the driver’s hold on his sore arm. The driver testified that he was beaten “all over the body.” Evidence was adduced showing that the driver received emergency treatment after the incident for pains in his eye and head. It is true, as argued by the Government, that if appellant used only -the force necessary to repel the alleged assault by the driver, he would be guilty of no crime. However, the testimony of the Government witnesses as well as that of the accused indicates that greater force may well have been used than was necessary to repel the acts of an aggressor. At the least, this raised a question of fact for the court to determine. The use of excessive force would make the accused guilty of an assault and battery. This evidence, coupled with the flat denial of the accused that any money was taken from the driver, reasonably raises as an issue in the case the possibility of a finding of guilty of the lesser oifense of assault and battery. In our opinion, the court should have been instructed on the elements of this offense and the failure to do so constitutes prejudicial error.

The decision of the board of review is reversed and a rehearing is ordered.

Judge LatimeR, concurs.

1 Following, pleas of guilty, both accused persons were also found guilty of AWOL.